This blog is used to post legal tips for businesses and consumers in California as well as commentaries on issues of interest to clients in the San Diego area. For information about our services, please contact us at (619) 448-2129. This publication is NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE. Please consult with a licensed attorney if you require legal advice. We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.

Every citizen in the State of California has the power of citizen's arrest under Penal Code Section 837. The power of citizen's arrest is very similar to that of a police officer in that the private citizen may take someone into custody for a misdemeanor committed in the presence of the private citizen or for a felony in which probable cause exists to make an arrest. Until 2002, it was actually a crime for a police officer to refuse to take someone into custody under a citizen's arrest. It was a misdemeanor punishable by a fine of up to $10,000 and up to one year in jail under Penal Code Section 142. However, the California state legislature removed this accountability by adding subsection (c) to Penal Code 142. Subsection (c) removes the penalty a police officer would receive if they refuse to act on citizen's arrests or the filing of crime reports.

According to an article recently published by Special Investigations Agency, the San Diego Police Department may be using this change in the law to artificially lower the number of crime reports. If this allegation is true, then it would tend to show that crime statistics can easily be manipulated by any police department for budgetary or other reasons. If someone wants to make a citizens arrest for property crimes such as shoplifting or vandalism, the police can refuse to take action or make an arrest without any fear of penalties. Even more serious misdemeanors such as violation of a domestic violence restraining order might not get the same attention from the police as under the prior law.

Without accountability, a police officer is no longer obligated under the law to act on a citizens arrest. Be removing a tool of empowerment from the people, the legislature may be unintentionally undermining public confidence in the police. According to a recent analysis of crime reporting statistics, only 8% of calls made to the San Diego Police Department result in a crime report. The other 92% of the calls do not make it into the crime statistics. By comparison, 12% of the calls to the Chula Vista Police Department generate crime reports and 21% of the calls to the Los Angeles Police Department generate crime reports.

There is at least anecdotal evidence to suggest that the San Diego Police Department might be making using this change in the law to do less work. The security director of a local shopping mall recently reported to me that his staff no longer even calls SDPD because of a pattern of releasing suspects and refusing to take a crime report or issue a citation.

It is time for citizens to call upon their legislators to restore accountability to local law enforcement.

UPDATE:

As many as 23% of phone calls to the San Diego Sheriff's Department result in a crime report compared to 8% for the San Diego Police Department. One possible explanation for this difference is that the Sheriff is an elected official and can be removed by a vote of the people. The Sheriff also contracts with incorporated cities such as Vista and Santee to provide full law enforcement services. Failing to provide good customer service could result in losing those contracts. By comparison, the San Diego Chief of Police will be directly accountable to the Mayor and City Council.

Friday, June 10, 2005

Special Investigations Agency (“SIA”) has asked San Diego City Attorney Mike Aguirre to launch a formal investigation regarding the under-reporting of crime statistics by the San Diego Police Department. SIA believes that the San Diego Police Department is discouraging citizen's from filing crime reports and discouraging the public from placing criminal suspects under citizen's arrest. Click here for a detailed discussion of SIA’s allegations against the San Diego Police Department.

SIA is a non-profit organization dedicated to educate, promote, and assure integrity and ethics by providing an investigative and intervention resource to the general public.

Saturday, June 04, 2005

There are two provisions in the new bankruptcy laws mandating financial counseling and education: before filing for bankruptcy, consumers would be required to have a briefing on the alternatives to bankruptcy; and before receiving a bankruptcy discharge, a debtor would be required to complete an instructional course concerning personal financial management.

Although the point of the legislation is to encourage debtors to use traditional debt consolidation programs, Chapter 13 bankruptcies are a type of debt consolidation with the power of the Federal Bankruptcy Code behind it. In a Chapter 13 bankruptcy, you have the power to restructure for finances by consolidating all of your debts into one court-ordered monthly payment. A Chapter 13 bankruptcy offers several advantages over traditional debt consolidation:

The Automatic Stay

Filing for a Chapter 13 bankruptcy provides you with the immediate protection of the automatic stay, which is a court injunction that prohibits nearly all collection activity against you, even pending lawsuits. The stay has the power to stop foreclosures, repossessions, garnishments, license suspensions, and creditor harassment. Traditional debt consolidations do not provide the same protection.

Broad Range of Debt Consolidation

Most traditional debt consolidations are limited to credit card debt. In most cases, you must negotiate separate agreements for mortgage delinquencies, car payments, tax debt, and child support arrears. All of these debts can be included in a Chapter 13 repayment plan by consolidating them into one monthly payment and protecting you from all of your creditors.

Drastically Reduced Total Amount of Debt

In most cases, a Chapter 13 bankruptcy will allow you to pay as little as 10% of the unsecured debt back and eliminate the other 90%. Your reduction in principal owed allows you to pay your debts off more quickly that you could through other consolidation plans lacking the power to dictate what the creditors are entitled to be paid. Traditional debt consolidation programs merely ask the creditor to lower the interest rates or balances and do not have a federal bankruptcy court ordering the creditors to adhere to the Chapter 13 reorganization plan.

Shorter Repayment Period

Chapter 13 bankruptcies generally last 3 and 5 years in length. All dischargeable debts are eliminated at the completion of the bankruptcy. Traditional consolidations allow a possibility that the plans could drag on for years without significantly lowering the balances.

No Interest or Late Fees

Upon filing Chapter 13, any debt in existence prior to the filing does not accrue any more late fees, and usually will be repaid interest-free. All of the money you pay toward your unsecured debt will generally be applied toward principal drastically reducing the amount of time it takes you to repay a debt.

Attorney Assistance

Your Chapter 13 attorney has a legal and ethical obligation to zealously represent your best interests. Thus, in a Chapter 13 bankruptcy, you have the opportunity to have a bankruptcy attorney represent only your interests and you are ensured that your attorney is fighting for your rights. Many debt consolidation programs are private entities, sponsored by creditors and do not have the same strict legal requirements to protect borrower's best interests.

Protects Equity

A Chapter 13 bankruptcy does not require you to post any collateral in order to consolidate your debts. Many traditional debt consolidations or home equity loans require you to risk your home and property if you cannot afford the monthly payments.

Pays Your Most Important Bills First

A Chapter 13 bankruptcy plan pays off most secured loans first and delays payment of unsecured debts. The majority of the initial Chapter 13 payments can be applied towards mortgage and automobile payment defaults. Credit cards and medical bills can be paid after these secured and other priority claims have been paid off. Traditional debt consolidation plans usually don't have the power to delay payments to unsecured creditors without penalty or give preferential treatment to your car or home finance companies.

Debts are Eliminated if the Creditor Doesn't File A Proof Of Claim

Each creditor must file a proof of claim with the Bankruptcy Court if they are to be paid during the consolidation. Frequently, not all creditors listed in a Chapter 13 bankruptcy file a proof of claim. As long as you finish the terms of your Chapter 13 debt repayment plan, all unfilled claims are eliminated and never have to be paid back.

We are a bankruptcy and debt relief agency. We help people file for bankruptcy.

Wednesday, June 01, 2005

Beginning June 1, 2005, a new federal rule will require businesses and individuals to take appropriate measures to dispose of sensitive information derived from consumer reports. Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule, a part of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), which calls for the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.”

Click here for more information on FACTA and the impact it might have on your business.